2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

performance of the cardiac catheterization and in the overall care at St. Luke’s, which is LehighCounty. As such, St. Luke’s was the location of the negligent act or omission, even though thecardiologist had given orders over the phone from his Northampton County home. Those orderswere to be carried out in Lehigh County. Venue was only proper, therefore, in Lehigh County.In Forrester v. Hanson, 901 A.2d 548 (Pa. Super. Ct. 2006), Plaintiff motorist brought apersonal injury action against the driver of a commercial vehicle and driver’s employer.Defendants subsequently filed a joinder complaint against Plaintiff’s treating physician, allegingthat physician’s negligent treatment of plaintiff was the true cause of plaintiff’s injuries.Critically, it must be noted that Defendants did not assert a separate cause of action againstphysician, but rather sought a jury determination of physician’s portion of the liability shouldDefendants be found negligent. After joinder was granted, physician objected to venue, arguingthat the case should be transferred from Philadelphia County to Montgomery County because allof the allegedly negligent acts as set forth in the joinder complaint took place at physician’soffice in Montgomery County. The court granted physician’s motion and transferred the case toMontgomery County pursuant to Rule 1006(a.1). Plaintiff appealed, arguing that the trial courtabused its discretion by transferring the case because Defendants did not bring any “medicalprofessional liability claim” in the joinder complaint as defined by the MCARE legislation.Rule 1006(a.1) provides that,(a.1) Except as otherwise provided by subdivision (c), a medicalprofessional liability action may be brought against a health careprovider for a medical professional liability action only in a countyin which the cause of action arose.Pa. R. Civ. P. 1006(a.1) (emphasis added). The explanatory note to 1006(a.1) explains that thedefinition of “medical professional liability action” for purposes of 1006(a.1) can be found insection 5101.1(c) of the MCARE Act.MCARE defines a “medical professional liability claim” as,[a]ny claim seeking the recovery of damages or loss from ahealthcare provider arising out of any tort or breach of contractcausing injury or death resulting from the furnishing of health careservices which were or should have been provided.42 Pa. Cons. Stat. § 5101.1(c).The Superior Court determined that Defendants in Forrester did not assert a “medicalprofessional liability claim” against physician because “[Defendants’] joinder complaint did notseek to recover damages or loss directly from [Defendant].” Rather, the Court noted thatDefendants merely sought a jury determination of physician’s portion of the liability. Given, inturn, that Defendants’ joinder complaint did not assert a medical professional liability claimwithin the meaning of the statute, the Superior Court determined that Rule 1006(a.1) did not133